The recent decision of the NSW Court of Appeal in Ulman v Live Group Pty Ltd  NSWCA 338 (20 December 2018) raises important issues about the interaction between internal disputes within a religious community, and the “secular” court system. In this case a majority held that the threat of purely religious sanctions, to be applied if a dispute was resolved in the ordinary courts rather than in a religious tribunal, amounted to contempt of court, and imposed financial penalties on members of the tribunal. Significant questions are raised as to whether religious groups are able to apply their own religious beliefs in disciplining members of their community, or whether these decisions will be over-ridden by the ordinary court system.
In my former posts (here and here), O Friend of Law and Religion, I have dealt with all that the Ruddock Report covered in recommendations 1-12 and 15, along with the official Government Response to those recommendations. In this post I aim to cover recommendations 13-14 and 16-20. These deal with important issues of the law of blasphemy and religious free speech, along with State discrimination laws, collection of data, education on religious freedom, the role of the Australian Human Rights Commission, and the exercise of leadership in the area by the Commonwealth.
Following my previous post giving comments on Recommendations 1, 5-8 and 15 of the Ruddock Report and the Government Response, I will comment here on another set of recommendations (Recs 2-4, 9-12) and the likely outcome. Comments on recommendations 13-14, and 16-20, will (hopefully) be made in Part 3!
The long-awaited Religious Freedom Review: Report of the Expert Panel (chaired by the Hon Philip Ruddock) has now been released publicly, along with the formal Government Response. After the prior leaking of its 20 recommendations there were no major surprises as to the final conclusion, but there is much interesting background to the recommendations (and in one or two cases the full Report seems to have a significant impact on how one should read the language of the recommendations.) It is also important to see the announced intentions of the LNP Government as to how they will respond.
In this first post in response to the full Report I will comment mainly on recommendations 1 & 5-8 and recommendation 15, with the other recommendations to be left for part 2 or later.
I am presenting a paper at a Melbourne Law School seminar on “Tort Liability of Churches for Clergy Child Abuse after the Royal Commission: Implications of Developments in the Law of Vicarious Liability and Non-Delegable Duty”, which is now available for those who are interested. The (fairly technical legal) paper reviews common law liability of churches, touches on some of the statutory changes in NSW and Victoria following the Royal Commission, and suggests that the High Court of Australia should refine the law of “non-delegable duty” to allow it to be used in cases involving intentional torts.
A brief note about the Sex Discrimination Act amendments which have the subject of a number of recent posts. The House of Representatives has now adjourned for the year without a Government Bill being introduced to make any changes concerning religious schools and discrimination. So no binding changes will be made this year. On 6 December the Senate referred the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018 to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 11 February 2019. Submissions to the Committee can be made at the website linked here, and must be provided by 21 January 2019: https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/Sexdiscrimination.
Note: this post has been edited- contrary to initial advice I had received from the Committee, the deadline for public submissions to the Committee on this inquiry is 21 January 2019, not 11 January.
Having noted last night that ALP-sponsored amendments to the Sex Discrimination Act 1984 (Cth) impacting religious freedom were set to be debated today (Wed 5 Dec) in the Senate, this is an update on the events of the morning. The situation, to put it mildly, has been fluid, but this seems to be where we are up to.
A brief update on Parliamentary developments. The Senate debate on the ALP-sponsored Bill to amend the Sex Discrimination Act 1984 took place today. While initially the Bill had been subject to a tight time limit which meant it would have passed today if not actually voted down, at the last minute a Government motion amended this arrangement. The result is as follows:
Debate on this bill will continue at a later date.
It seems that the bill is likely to be referred for consideration to a committee, and the debate will presumably be picked up in the New Year.
There was a similar Bill, however, introduced into the House of Representatives this morning by the Leader of the Opposition. At the moment it is not clear whether this Bill will be debated again this week. More updates will be provided when more is known.